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Protecting rights and facilitating stable relationships among federal agencies, labor organizations, and employees while advancing an effective and efficient government through the administration of the Federal Service Labor-Management Relations Statute.

The Administrative Law Judge issued his Decision and Order in the
above-entitled proceeding finding that the Respondent had engaged in certain
unfair labor practices and recommending that it be ordered to cease and desist
therefrom and take certain affirmative action. Thereafter, the Respondent filed
exceptions to the Judge's Decision and Order.

Pursuant to section 2423.29 of the Authority's Rules and Regulations (5
CFR 2423.29) and section 7118 of the Federal Service Labor - Management
Relations Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.
1
Upon consideration of the Judge's Decision and Order and the entire record in
this case, including the Respondent's exceptions, the Authority hereby adopts
the Judge's recommendations as modified herein.
2
Based on the Authority's decision in State of Nevada National Guard, 7 FLRA No.
37 (1981), and the rationale therein, the Authority agrees with the Judge that
the Respondent violated section 7116(a)(1) and (6) of the Statute. The
authority finds it unnecessary, in view of the nature of the exceptions, to
address further the Judge's discussion of the scope of the Authority's review
of Federal Service Impasses Panel decisions. [ v8 p158 ]

Pursuant to section 2423.29 of the Federal Labor Relations Authority's
Rules and Regulations and section 7118 of the Statute, it is hereby ordered
that the Division of Military and Naval Affairs, State of New York, Albany, New
York, shall:

1. Cease and desist from:

(a) Refusing to honor and abide by the January 9, 1979, Decision and
Order of the Federal Service Impasses Panel regarding "Wearing of the Military
Uniform" or in any other manner failing or refusing to cooperate in impasse
decisions or procedures.

(b) Refusing to adopt the following language in their collective
bargaining agreement with the New York Council, Association of Civilian
Technicians:

Employees, while performing their day-to-day technician duties, shall
have the option of wearing either (a) the military uniform or (b) an
agreed-upon standard civilian attire without displaying military rank, such
clothing to be purchased by employees who choose to wear it.

(c) Refusing to agree upon and incorporate in their collective
bargaining agreement with New York Council, Association of Civilian Technicians
those circumstances and occasions for which the wearing of the military uniform
may be required.

(d) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the Federal
Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:

(a) Adopt the following language in its collective bargaining agreement
with the New York Council, association of Civilian Technicians:

Employees, while performing their day-to-day technicians duties, shall
have the option of wearing either (a) the military uniform or (b) an
agreed-upon standard civilian attire without display of military rank, such
clothing to be purchased by employees who choose to wear it. [ v8 p159 ]

(b) Meet and negotiate with the New York Council, Association of
Civilian Technicians regarding those circumstances and occasions for which the
wearing of the military uniform may be required and incorporate the agreement
reached in its collective bargaining agreement.

(c) Post of its facilities wherever unit employees are located, copies
of the attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by the Adjutant
General of the Division of Military and Naval Affairs, State of New York and
shall be posted by him for 60 consecutive days in conspicuous places, including
all bulletin boards and other places where notices to employees are customarily
posted. The Adjutant General shall take reasonable steps to insure that such
Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region I, Federal Labor Relations
Authority, in writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.

Issued, Washington, D.C., February 19, 1982

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v8 p160 ]

NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to honor and abide by the January 9, 1979, Decision
and Order of the Federal Service Impasse Panel regarding "Wearing of the
Military Uniform" or in any other manner failing or refusing to cooperate in
impasse decisions or procedures.

WE WILL NOT refuse to adopt the following language in our collective
bargaining agreement with the New York Council, association of Civilian
Technicians:

Employees, while performing their day-to-day technicians duties, shall
have the option of wearing either (a) the military uniform or (b) an
agreed-upon standard civilian attire without displaying military rank, such
clothing to be purchased by employees who choose to wear it.

WE WILL NOT refuse to agree upon and incorporate in our collective
bargaining agreement with New York Council, Association of Civilian Technicians
those circumstances and occasions for which the wearing of the military uniform
may be required.

WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their rights assured by the Federal
Service Labor - Management Relations Statute.

WE WILL adopt the following language in our collective bargaining
agreement with the New York Council, Association of Civilian Technicians:

Employees, while performing their day-to-day technician duties, shall
have the option of wearing either (a) the military uniform or (b) an
agreed-upon standard civilian attire without display of military rank, such
clothing to be purchased by employees who choose to wear it. [ v8 p161 ]

WE WILL meet and negotiate with the New York Council, Association of
Civilian Technicians regarding the circumstances and occasions for which the
wearing of the military uniform may be required and incorporate the agreement
reached in our collective bargaining agreement with such labor organization.

This notice must remain posted for 60 consecutive days from the date of
posting and must not be altered, defaced or covered by any other material.

If employees have any question concerning this Notice, or compliance
with any of its provisions, they may communicate directly with the Regional
Director of the Federal Labor Relations Authority, Region I, 441 Stuart Street,
9th Floor, Boston, Massachusetts 02116, and whose telephone number is (617)
223-0920.

[ v8 p162 ]

DIVISION OF MILITARY AND NAVAL
AFFAIRS,
STATE OF NEW YORK,
ALBANY, NEW YORK
Respondent
and
NEW YORK COUNCIL,
ASSOCIATION OF CIVILIAN TECHNICIANS
Charging Party
Case No. 1-CA-19
C. Roger Lunden, Esquire
For the Respondent
Richard O. Zaiger, Esquire
For the General Counsel
John Giarrusso
For the Charging Party
Before: SALVATORE J. ARRIGO
Administrative Law Judge

This is a proceeding under the Federal Service Labor - Management
Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101 et seq.

Upon a charge filed by New York Council, Association of Civilian
Technicians (the Union) on March 15, 1979, and amended on October 17, 1979,
against Division of Military and Naval Affairs, State of New York, Albany, New
York,
3
the General Counsel of the Authority, by The Regional Director for Region 1,
issued a Complaint and Notice of Hearing on October 17, 1979, alleging that
Respondent had engaged in and was engaging in unfair labor practices within the
meaning of Sections 7116(a)(1) and (6) of the Statute. The complaint alleged
that since February 9, 1979, Respondent refused and continues to refuse to
comply with a Decision and Order of the Federal Service [ v8 p163 ] Impasses
Panel dated January 9, 1979, requiring the Charging Party and Respondent to
adopt into their collective bargaining agreement certain language relative to
wearing of the military uniform. On October 26, 1979, Respondent filed its
answer to the complaint wherein it admitted in part and denied in part the
allegations in the complaint and set forth various affirmative defenses.

On January 15, 1980, counsel for the General Counsel filed a Motion for
Summary Judgment and on January 30, 1980, Respondent filed a Statement in
Opposition to Charging Party's (sic) Motion of Summary Judgment and Cross -
Motion for Summary Judgment.
4
On January 31, 1980, the parties were notified that ruling on the outstanding
motions would be held in abeyance pending receipt of argument at the hearing
scheduled for February 5, 1980.

At the hearing conducted on February 5, 1980 in Albany, New York all
parties were represented and afforded full opportunity to present argument on
their respective positions. Based upon the entire record in this matter,
including the documents received in evidence and the arguments made at the
hearing, counsel for the General Counsel's Motion for Summary Judgment was
granted and Respondent's Cross - Motion for Summary Judgment was denied at the
hearing. My ruling is based upon the following:

Findings and Conclusions

1. On March 27, 1978, the Union filed a request with the Federal Service
Impasses Panel to consider a negotiation impasse with the Respondent under
Section 17 of Executive Order 11491, as amended.

2. The parties appeared before a representative of the Panel at a
factfinding hearing conducted on June 7 and 8, 1978, at which time the parties
presented testimony and documentary evidence and argument relative to the
impasse at issue which included the question of whether technicians should be
required to wear the military uniform or permitted to wear civilian clothing
when performing technician duties, the only issue concerned herein.

3. On September 28, 1978, a Panel Report and Recommendation for
Settlement (78 FSIP 32) issued which provided, inter alia:

"a. The parties should adopt language in their agreement affording
employees, while performing their day-to-day technician duties, the option of
wearing either (a) the military uniform or (b) an agreed-upon standard civilian
attire without display of military rank, such clothing to be purchased by
employees who choose to wear it. [ v8 p164 ]

"b. The parties should agree upon exceptions to cover those
circumstances and occasions for which the wearing of the military uniform may
be required."

4. Respondent considered the Panel's Report and Recommendation and on
October 31, 1978, took exception to the Panel's recommendation and requested
review of the Panel's decision.

5. On January 1, 1979, the Panel issued its Decision and Order in the
matte and ordered:

"a. The parties shall adopt the following language in their agreement:

Employees, while performing their day-to-day technician duties, shall
have the option of wearing either the military uniform or an agreed-upon
standard civilian attire without display of military rank, such clothing to be
purchased by employees who choose to wear it.

b. Circumstances and occasions for which the wearing of the military
uniform may be required shall be agreed upon by the parties and incorporated in
their agreement."

6. By letter dated February 9, 1979, to the Panel, a copy of which was
also sent to the Union, Respondent stated it had "initiated proceedings to
obtain judicial review of the Panel's Order in accordance with Section 7123 (of
the Statute . . . and) that portion of the order must be placed in abeyance
pending the outcome of our judicial initiative."

7. The Panel responded on February 28, 1979, and, having considered
Respondent's letter of February 9, 1979, to be a motion to hold in abeyance,
denied the motion finding no persuasive reasons were presented to support the
motion.

8. On March 7, 1979, Respondent filed with the Authority a document
entitled "Petition for Reconsideration" wherein it requested that the Authority
review the propriety of the Panel Order dated 9 January 1979, insofar as it
mandated the adoption of the language related to the wearing of the uniform.
The issues set forth by Respondent were as follows:

"Did the Federal Labor Relations Council, an agency within the meaning
of the Administrative Procedure Act, by its authority derived from an executive
order, have the power to vitiate a [ v8 p165 ] military regulation applicable
only to National Guard technicians, and promulgated pursuant to statute by the
Department of Defense?

"Assuming that the Federal Labor Relations Council had the authority to
review federal civilian employee regulations for the purpose of determining
their negotiability, and that said review was properly made according to a
'compelling need' standard, did an invalid determination of negotiability
result as to a particular military regulation by reason of an invalid
application of the standard for review?"

9. On October 17, 1979, counsel for the General Counsel issued a
Complaint alleging respondent's refusal to abide by the Panel's Decision and
Order of January 9, 1979, violated Sections 7116(a)(1) and (6) of the Statute,
which provisions declare it to be an unfair labor practice:

"(1) to interfer with, restrain, or coerce any employee in the exercise
by the employee of any right under this chapter;

"(6) to fail or refuse to cooperate in impasse procedures and impasse
decisions ..."

10. On October 26, 1979, Respondent filed its Answer to the Complaint
essentially admitting the fact of its refusal to take the action ordered by the
Panel in its January 9, 197, Decision and Order, but denying that such conduct
violated the Statute. Further, Respondent set forth various affirmative
defenses by challenging the jurisdiction of the Authority to act on the
Complaint while Respondent's Petition for Reconsideration of March 7, 1979, had
not been ruled on and alleging a violation of due process of law with regard
thereto; alleging that latches and/or equitable considerations compels the
conclusion that the Union's charge was abandoned; contending the Panel's
January 9, 1979, was invalid and contrary to law in various respects; and
contending that an improper Respondent had been named.

11. On December 5, 1979, the Authority denied Respondent's March 7, 1979
"Petition for Reconsideration" which the Authority construed to be "petition
for direct review". The Authority concluded that the Statute does not sanction
Authority review of a Panel Decision and Order "except through the unfair labor
practice procedures set forth in the Statute."

12. By mailgram dated December 20, 1979, the Union requested Respondent
negotiate to implement the Panel's Decision and Order of January 9, 1979.
Respondent, on December 21, 1979, declined to negotiate by stating: "As you are
well aware it is our intention to pursue judicial review should this Division
be unsuccessful in defending the uniform requirement before the Authority in
February."
5
[ v8 p166 ]

13. Counsel for the General Counsel filed a Motion for Summary Judgment
on January 15, 1980, noting that on December 5, 1979, the Authority denied
Respondent's Petition for Reconsideration. Counsel for General Counsel
contended that Respondent, in its Answer of October 26, 1979, "... Does not or
cannot deny the pertinent factual allegations of the Complaint" and that
since"... all material facts (have) been admitted or established beyond
controversy a Motion for Judgment is appropriate unless the facts referred to
... are insufficient to constitute a violation of Section 7116(a)(1) and (6) of
the Statute or merit is found in one of Respondent's five (5) affirmative
defenses which it raised in its Answer."

14. On January 30, 1980, Respondent filed a "Statement in Opposition to
Charging Party's (sic) Motion for Summary judgment and Cross - Motion for
Summary Judgment" in which it did not challenge or put in dispute Counsel for
the General Counsel's representation that Respondent failed to comply with the
Decision and Order of the Panel or the Facts as set forth above. In this regard
Respondent presented various documents which were part of the record placed
before the Panel when the uniform issue was being presented to the Panel for
determination. The basis of Respondent's argument in opposition to the Motion
for Summary Judgment is its desire to challenge and obtain a full review of the
Panel's underlying premise that the wearing of the uniform is a negotiable
matter.
6
Respondent accordingly seeks an opportunity in this proceeding to challenge the
prior determination of the Council, as augmented by "new evidence" on this
issue, and have the entire matter reviewed by the Authority through the
administrative process. Thus, Respondent argues that an administrative unfair
labor practice hearing should be conducted in order to provide a full
administrative review of "... not only the underlying record before the Panel
but ... any new evidence which is germane to (Respondent's) failure to comply
with the Decision and Order ..."

In addition, Respondent in the cross-motion for summary judgment
contends that a refusal to comply with a Panel decision does not constitute a
violation of Section 1716(a)(1) of the Statute absent evidence to support a
finding of male fides or intent to interfere, restrain, or coerce employees.

15. At the hearing conducted before me on February 5, 1980,
7
Respondent conceded it did not comply with the Panel's Decision and Order of
January 9, 1979. However, Respondent contended that the Panel made an improper
decision based on the evidence before it; that the Panel gave insufficient
weight to [ v8 p167 ] Respondent's evidence; that additional new evidence
germain to the issue before the Panel should now be received; that the
Administrative Law Judge and the Authority should review the evidence that was
before the Panel, and additional new evidence, and reconsider and reverse the
decision of the Panel. Respondent also acknowledged that no new legal arguments
were being raised at the hearing which were not previously raised before the
Panel and the only factual matters Respondent wished to present at the hearing,
which was not previously presented to the Panel, was new evidence with regard
to the "consequences" to the National Guard from the use of civilian attire by
technicians.

With regard to the "consequences" evidence, after permitting an offer of
proof I rejected receipt of such testimony. The offer of proof reveals that, if
permitted, Respondent would adduce testimony relating to National Guard units
where contractual uniform provisions similar to that ordered by the Panel
herein were in effect, as follows:

(a) In August 1978, in Massachusetts, a person in uniform did not want
to take orders from an individual in civilian clothing since the uniformed
person had no way of knowing the rank of the individual in civilian attire
thus, opinion evidence would show, producing a "command problem".

(b) Respondent was informed in January 1979 that on some undisclosed
date an Ohio technician in civilian attire was refused training in Panama
because of appearance thereby, in the opinion of Respondent's witness,
depriving the unit of the benefit of training the individual would have
acquired.

(c) In December 1978 or January 1979, in Pennsylvania, a technician
allowed his beard to grow between monthly drills thereby providing an unkempt
appearance which, hearsay and opinion testimony would show, would produce a
source of irritation to members of the public and the office he represents.

(d) The commanding officer of the Montana National Guard would testify
that between July 1978 and February 1978 in Montana;
8

(i) An undisclosed number of "part-time" guardsmen who were not
technicians objected to technicians who did not were the uniform and found the
technicians failure to follow the more stringent prior uniform and grooming
regulations to be a "considerable irritant".

(ii) Violations of the uniform clause have been "frequent and varied"
such as wearing a mix of military and civilian attire, wearing improper
footwear and wearing military cold weather gear with civilian clothing. Mix of
[ v8 p168 ] clothing violations are a "constant irritation" and when violators
complain to their union representatives, the "irritation" and loss of time
occasioned results in reduced work effectiveness of the individuals involved
and the entire unit.

(iii) "Some" individuals in civilian attire use the clothing controversy
as a shield for bad behavior, for instance, responding to comments of
unsatisfactory work performance or failure to receive special schooling or
assignments by claiming that the adverse treatment was a result of choosing to
wear civilian clothing. "A number" of unfair labor practices have been filed
charging management with such discrimination and valuable time is spent
investigating and attempting to resolve these charges.

(iv) Mission accomplishment and overall attitude and morale of the unit
has been adversely affected as a result of the "constant argument" over proper
work attire and the loss of time "arguing over petty clothing standards."

16. At the hearing conducted on February 5, 1980, I granted counsel for
General Counsel's Motion for Summary Judgment and denied Respondent's Cross -
Motion for Summary Judgment. I noted that the only matter not before the Panel
when it issued its decision was the proffered evidence contained in the offer
of proof. I concluded that Respondent's reasons for refusing to comply with the
Panel's Decision and Order were invalid, that no further hearing was warranted
and accordingly, Respondent by its conduct violated Section 7106(a)(6) of the
Statute.

I further concluded that by its refusal to comply with the Panel's
Decision and Order, Respondent also violated Section 7116(a)(1) of the Statute
even though no specific additional evidence was presented relative to
establishing Respondent's bad faith.

Discussion

Respondent argues that under the Statute an Administrative Law Judge is
empowered to reverse a decision of the Panel both by reaching different factual
and/or legal conclusions than the Panel reached in its deliberations as well as
considering matters which were not before the Panel when it decided the issue.

The extent to which a decision of the Panel should be accorded finality
is a matter of first impression at this time. However, in my view Respondent
has failed to establish a valid reason for its refusal to comply with the
Panel's decision regardless of how the finality of the Panel's decision is
approached.

Obviously, if the Panel's decision is considered to be absolutely final
and binding as far as the administrative process is concerned, Respondent's
failure to comply with that decision is the only subject of administrative
review and a violation of the Statute is clear. Thus, only the Panel would have
authority to question its own findings and conclusions and the Panel would be
the only body which would be empowered to consider any "new facts" which [ v8
p169 ] arose subsequent to the Panel's initial decision.
9
The legislative history of the Statute gives some support for tis theory.
Section 7119(c) of the Statute provides that "final action" of the Panel shall
be "binding" on the parties. The legislative history of the Statute reveals
that the Senate bill under consideration in 1978 (S. 2640) contained a
provision expressly providing that the Authority "may consider" exceptions to
final decisions and orders of the Federal Service Impasses Panel.
10
The Senate Committee Report on this section of the bill states:
11

"The provision further expressly sanctions appeals to the Authority from
final decisions and order of the Federal Service Impasses Panel. The broad
authority of the Council under Executive Order 11491 to interpret the Order,
decide major policy issues and take whatever action is required to effectuate
the purposes of the Order implies a right to oversee final decisions and orders
of the Panel. This subchapter specifically sets forth the limited power of
review by the central authority to assure uniform application of the legal
requirements in the program, but it is not anticipated that it would often be
necessary to exercise it except in the unlikely event that the legal
requirements of the program are misapplied. The Authority would not otherwise
review the substance or merits of any final decisions and orders of the Panel."

On the House side, the corresponding bill under consideration in 1978
(H.R. 11280) made no express provision for Authority review of final decisions
of the Panel. Indeed, the House Report of July 31, 1978 contains the following
explanatory language: ". . . the action (of the Panel) is final and binding on
the parties. . . Final action of the panel under this section is not subject to
appeal and failure to comply with any final action order by the Panel
constitutes an unfair labor practice. . . ."
12
(Emphasis added). Accordingly, since the language in S.2640 was not adopted and
the House version was the one subsequently enacted, it may well be argued that
Congress intended [ v8 p170 ] to completely exempt final Panel decisions from
any type of administrative review. However, it would appear that this
interpretation may have already been rejected by the Authority in that its
December 5, 1979 response to Respondent's March 7, 1979 "Petition for
Reconsideration" stated, inter alia; ". . . Authority review of a final Panel
Decision and Order . . . may be sought . . . only after the filing of unfair
labor practice charges . . ." This statement could be interpreted as suggesting
that the Authority construes its function to review, in some dimension, final
decisions of the Panel.

A second approach to the question of appealability of a final decision
of the Panel might be to consider a panel decision to be reviewable only to a
very limited extent. Following this approach a final Panel decision would be
administratively reviewable only with regard to those significant extraordinary
issues which were within the sole discretion of the Authority, such as the
correctness of an underlying negotiability determination
13
or matters which the Authority has clearly deemed it advisable to review.
14
In these circumstances the decision would be solely that of the Authority and
the Administrative Law Judge would have authority to hear the matter only upon
specific direction from the Authority. The Authority has not at this juncture
ordered any such hearing and accordingly, under this theory I do not conclude I
have any warrant to conduct a hearing on any issue presented by the Respondent.

A third approach could provide Respondent a right of administrative
review of the Panel's decision wherein the special circumstances of the
situation might give rise to the right of limited review. Such situation would
be similar to that of the review accorded in an unfair labor practice case of a
matter previously litigated in a representative proceeding under the National
Labor Relations Act. The National Labor Relations Board has long held that in
the absence of newly discovered or previously unavailable evidence or special
circumstances, a respondent in a proceeding alleging a refusal to bargain under
the Act is not entitled to relitigate issues which were or could have been
litigated in a prior representation proceeding.

Respondent urges that the Board's approach be followed and argues that
the matter set forth in the offer of proof falls within the scope of
relitigable issues under the Board's rule. However, it is well settled under
Board law that there is no right to review of an underlying determination of a
prior administrative decision of the Board based upon the claim of facts which
[ v8 p171 ] occurred after the Board's initial representation decision.
15
The following language of the court in L.B. Foster, Co. is particularly
applicable:

"... to deny enforcement, with or without remand for reconsideration on
the basis of facts occurring after the Board's decision, is to put a premium
upon continued litigation by the employer; it can hope that the resulting delay
will produce a new set of facts, as to which the Board must then readjudicate.
Suppose that the Board does so, and again finds against the employer. There can
then be a petition to this court, a decision by it, and a petition for
certiorari to the Supreme Court. By that time there will almost surely be
another new set of facts. When is the process to stop?"

Therefore, as I find no special circumstance which would require review
of the panel's Decision and Order, I conclude that further review of the
Panel's decision is unwarranted.
16
In my judgment, to inquire further into the soundness of the Panel's factual
findings and legal conclusions or the procedures it employed in reaching its
decision would inevitably result in opening inquiry into essentially a full
review of the panel's actions.

Lastly, a final Panel decision might be considered fully reviewable, as
Respondent suggests, wherein the review would be tantamount to a hearing de
novo. I reject this concept. To conclude otherwise would render a nullity the
legislative history of the Statute as stated above, undermine the Panel's
function and effectiveness and produce a stream of interminable litigation on
matters which the Panel is uniquely designed to resolve in an expeditious
fashion.

With regard to Respondent's argument that no finding of violation of
Section 7116(a)(1) can be supported without specific proof of bad faith or
intent to interfere with, restrain or coerce employees, Respondent's [ v8 p172
] contentions are without merit.
17
Under Section 7102 of the Statute employees are assured the right to join, form
and assist labor organizations and engage in collective bargaining through
their chosen representatives. The Union herein, as the employees collective
bargaining representative, is seeking to conclude an agreement with Respondent
regarding conditions of employment. The statutory scheme envisions that when an
impasse occurs Panel assistance will be sought and the decision of the Panel
will be final and binding on the parties. Thus, the Panel becomes an integral
part of the collective bargaining process. When a final decision of the Panel
is defied and a union is frustrated in its attempt to enter into an agreement
in the manner prescribed by the Statute, employees will readily conclude that
significant fruits which flow from union representation are illusory and
motivation for union membership and assistance is substantially diminished.
Accordingly, when Respondent undermined this aspect of the collective
bargaining process by rejecting the statutory procedure enacted to resolve
impasse disputes, Respondent interfered with its employees rights granted by
the Statute.

The claim that Respondent did not violate Section 7116(a)(1) since it
engaged in such conduct merely to obtain review of the Panel's Decision and
Order is not persuasive. The Statute provides that the decision of the Panel is
final and binding on the parties. Therefore, a party who refuses to follow the
Panel's final decision does so at its peril. If Respondent ultimately prevails
in its argument that it was not obligated to follow the Panel, then obviously
there was no 7116(a)(1) violation of the Statute. However, if Respondent is
incorrect, then the employees were illegally denied the benefit of a
contractual provision until such time as Respondent complies with the Panel's
Decision and Order. In these circumstances it becomes all too apparent to
employees that since the full benefits of union representation can be illegally
delayed, such benefits are substantially less than that which the Statute
sought to provide in its declaration that Panel decisions would be final and
binding.

Having found and concluded that by its failure and refusal to comply
with a final Decision and Order of the Federal Service Impasses Panel
Respondent violated Sections 7116(a)(6) and (1) of the Statute, I recommend
that the Authority issue the following:

Pursuant to Section 7118(a)(7) of the Federal Labor - Management
Relations Statute and Section 2423.29 of the Final Rules and Regulations, it is
hereby ordered that Division of Military and Naval Affairs, State of New York,
Albany, New York shall: [ v8 p173 ]

1. Cease and desist from:

(a) Refusing to honor and abide by the January 9, 1979, Decision and
Order of the Federal Service Impasses Panel regarding "Wearing of the Military
Uniform" or in any other manner failing or refusing to cooperate in impasse
decisions or procedures.

(b) Refusing to adopt the following language in their collective
bargaining agreement with the New York Council, Association of Civilian
Technicians:

Employees, while performing their day-to-day technician duties, shall
have the option of wearing either the military uniform or an agreed-upon
standard civilian attire without display of military rank, such clothing to be
purchased by employees who choose to wear it.

(c) Refusing to agree upon and incorporate in their collective
bargaining agreement with New York Council, Association of Civilian Technicians
those circumstances and occasions for which the wearing of the military uniform
may be required.

(d) In any like or related manner, interfering with, restraining, or
coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:

(a) Post at its facilities in New York State copies of the attached
notice marked "Appendix" on forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by the Adjutant General, State of
New York, and shall be posted and maintained by him for 60 consecutive days
thereafter in conspicuous places, including all bulletin boards and other
places where Notices to Employees are customarily posted. Reasonable steps
shall be taken to insure that said Notices are not altered, defaced or covered
by any other material.

(b) Notify the Regional Director of Region I, 441 Stuart Street, 8th
Floor, Boston, Massachusetts 02116, in writing, within 30 days from the date of
this Order as to what steps have been taken to comply herewith.

APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL honor and abide by the January 9, 1979, Decision and Order of
the Federal Service Impasses Panel regarding "Wearing of the Military Uniform"
and cooperate with impasse decisions and procedures.

WE WILL adopt the following language in our collective bargaining
agreement with New York Council, Association of Civilian Technicians:

Employees, while performing their day-to-day technician duties, shall
have the option of wearing either the military uniform or an agreed-upon
standard civilian attire without display of military rank, such clothing to be
purchased by employees who choose to wear it.

WE WILL agree upon and incorporate into our collective bargaining
agreement with New York Council, Association of Civilian Technicians, those
circumstances and occasions for which "wearing of the military uniform" may be
required.

WE WILL NOT, in any like or related manner, interfere with, restrain, or
coerce employees in the exercise of their rights assured by the Statute.

Footnote 1 In this connection, Respondent has
advanced no basis sufficient to warrant consideration by the Authority of
factual arguments not previously raised before the Federal Service Impasses
Panel.

Footnote 2 The affirmative action portion of the
Judge's Recommended Order is modified herein based on the circumstances of this
case.

Footnote 4 The cross-motion requested summary
judgment relative to the allegation that Respondent violated Section 7116(a)(1)
of the Statute.

Footnote 5 A hearing on the complaint had been
scheduled for February 5, 1980.

Footnote 6 The Panel, in its January 9, 1979,
Decision and Order considered the following Council decisions to be
controlling: National Association of Government Employees, Local R14-87 and
Kansas National Guard, FLRC No. 76A-16 (and other cases consolidated therewith)
(January 19, 1977), Report No. 120; and National Federation of Federal
Employees, Local 1636, and State of New Mexico National Guard, FLRC No. 76A-75
(and other cases consolidated therewith) (January 19, 1977), Report No. 120;
requests for reconsideration denied (May 18, 1977), Report No. 125.

Footnote 8 Dates established from an affidavit
of the Montana Air National Guard commanding officer dated February 6, 1979
indicating that in May 1978, the uniform option was added to that units
collective bargaining agreement by Panel Order.

Footnote 9 While Respondent by its "Petition for
Reconsideration" of March 7, 1979, requested the Authority to "review" the
Panel's decision, Respondent did not at any time present its arguments for
reconsideration to the Panel.

Footnote 13 See Section 7117(b) and (c) of the
Statute and Part 2424 et seq. of the Regulations.

Footnote 14 See generally, e.g., Part 2428.3 of
the Regulations which treats enforcement of Assistant Secretary standards of
conduct decisions and orders and provides that upon filing with the Authority a
petition to enforce, an Assistant Secretary's decision and order ". . . shall
be enforced (by the Authority) unless it is arbitrary, capricious, or based
upon manifest disregard of the law."

Footnote 16 Even if Respondent's new evidence
was admissable for the purpose of evaluating the Panel's prior decision, I
would find the "evidence" contained in the offer of proof to be too
insubstantial to vary the Panel's conclusion when considering the totality of
the evidence the Panel reviewed in reaching its findings and conclusions.

Footnote 17 I do not conclude that the language
contained in the House Report of July 31, 1978 (Legislative History of the
Federal Service Labor-Management Relations Statute, fn. 8, at 700, 701), which
states that "failure to comply with any action ordered by the Panel constitutes
an unfair labor practice by an agency under section 7116(a)(6) and (7). . .",
excludes the possibility of finding such conduct to be violative of any other
provision of the Statute.